Artboard 1You get served with a citation in a new products suit. The facts do not look good. The airbag system didn’t deploy. Maybe a tire exploded. Perhaps the steering assembly failed. A call is made to the plaintiff’s attorney – you want an expert to use an onboard diagnostic tool to test for what went wrong. Expecting to reach an amenable date for an inspection, you get a response that you were not quite expecting – the vehicle (or tire or steering assembly) has been salvaged and is no longer available for inspection. What happens next, and the legal theories involved, undoubtedly vary from state to state. Here we take a brief look at Louisiana law on the “case of the missing product.”

Adverse Presumption

In Williams v. General Motors Corp., 639 So. 2d 275, 276 (La. App. 4 Cir. 1994), the plaintiff was driving as 1985 Buick manufactured by GM when his steering failed and his vehicle veered into a guardrail. After the accident, the Williams’ damaged vehicle was taken to Jackie Rowan’s Automotive Repair where “[a]n employee of the repair shop discarded the rack and pinion steering assembly. Mr. Williams, therefore, could not produce those parts at the trial in support of his claim that they were defective.” Id. at 278. General Motors asserted that the failure to produce those parts in court “creates a presumption that the evidence would have been unfavorable to his cause.” Id. The court held that “[w]here a litigant fails to produce evidence available to him and gives no reasonable explanation, the presumption is that the evidence would have been unfavorable to him….the record supports Mr. Williams’ contention that the part was inadvertently discarded when it was mistaken for scrap metal by an employee of Jackie Rowan’s Automotive Repair Shop.” Id. The court held that Mr. Williams therefore provided a reasonable explanation for his failure to produce the evidence in court and no such unfavorable presumption applied. Id.

While in the Williams case the plaintiff was able to provide a ‘reasonable explanation’ for his failure to produce the allegedly defect part, such a determination is fact intensive and varies from case to case. Depending on the plaintiff’s response to the inquiry requesting an inspection of the product, there may be an opportunity to seek an adverse presumption prior to trial.

 

The Firestone Case & Summary Judgment

firestoneAlternatively, if the facts so align, a more cost effective approach may be a motion for summary judgment. In a very recent case, Gladney v. Milam, 39, 982 (La. App. 2 Cir. 9/21/15); 911 So. 2d 366, the plaintiff was driving a leased van equipped with Firestone tires when the van’s right front tire failed and the plaintiff lost control of his vehicle. Firestone filed a motion for summary judgment on the grounds that plaintiff could not prove a defective condition without producing the tire at issue, which had gone missing for reasons unknown. Id. at 368. The plaintiff had “photographs of the damaged tire, a copy of the state police accident report listing tire failure as the cause of the accident, [and] the affidavit of Sidney Youngblood, a manager of a tire store who had reviewed photographs of the tire, and correspondence concerning the location of the tire.” Id. The court ultimately held as follows:

 

At trial, the plaintiffs would have the burden of proving by a preponderance of evidence that a characteristic of the tire made it unreasonably dangerous, or that the tire was negligently maintained, thereby causing the accident. However, the plaintiffs’ experts did not know the air pressure at the time of the accident or when the pressure was last checked, and could only speculate that the tire was defective given the visible damage to the tire depicted in the photographs. Thus, although the circumstantial evidence offered by plaintiffs raised several plausible explanations for the cause of the tire’s failure, the record does not contain sufficient evidence from which a reasonable juror could conclude that more probably than not the accident was caused by either a defective condition of the tire or negligent maintenance.

Consequently, we cannot say the district court erred in granting summary judgment in favor of Firestone . . . . Id. at 372.

 

While the above brief discussion only serves a cursory analysis of the ‘Case of The Missing Product,’ it shows that when you have a products liability case with no product, there are substantively powerful and potentially cost effective procedural paths to go down that can advantageously position a manufacturer’s defenses. Proper discovery inquiries also undoubtedly go a long way toward setting the framework for these defenses and, as in any case, require attention to detail so as to garner the right information.